Mother Nature (WRATH)

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The Endangered Antiquities Act
By JOHN D. LESHY and MARK SQUILLACEMARCH 31, 2017

The heart of the Antiquities Act of 1906 is a mere two sentences. But a good argument can be made that this brief law — which authorizes the president to protect “objects of historic or scientific interest” on federal lands as “national monuments” — has done more than any other to shape our nation’s conservation legacy.

The act has been used more than 150 times, by nearly every president, Republican and Democrat, from Theodore Roosevelt on, to protect hundreds of millions of acres for the inspiration and enjoyment of present and future generations. Five of the nation’s 10 most-visited national parks — Grand Canyon, Zion, Olympic, Teton and Acadia, each attracting millions of people a year — were first protected by presidents using the Antiquities Act.

Even so, this law is under attack. The 2016 Republican Party platform called for amending it to give Congress and states the right to block the president from declaring national monuments. By thwarting the president’s ability to take quick action to protect wild and historic places from threats, this proposal would effectively repeal the act.

Now critics, including Representative Rob Bishop, a Republican from Utah and chairman of the House Committee on Natural Resources, are ramping up a campaign to strip away the president’s authority under the Antiquities Act to designate monuments. Mr. Bishop complains that it allows the federal government to “invade” and “seize” lands. But that’s not true. The act authorizes the president to protect only lands already “owned or controlled by the government of the United States,” not state or private land.

Some dislike the law because presidents have tended to use it late in their terms to sidestep opposition to their designations. But would anyone today seriously question the wisdom of Theodore Roosevelt’s using the act to protect what is today the core of Olympic National Park in Washington two days before he stepped down in 1909? Or Herbert Hoover’s safeguarding what are now three national parks, including Death Valley in California (1.3 million visitors last year), in his last three weeks in office in 1933? Or Dwight D. Eisenhower’s setting aside what is now the Chesapeake and Ohio Canal National Historical Park (five million visitors last year) two days before John F. Kennedy’s inauguration in 1961?

Because these presidential actions change the status quo and prevent development, they have sometimes incited local opposition. But over time, the growing popularity of these places often led Congress to recast them as full-fledged national parks.

That’s what happened after Franklin D. Roosevelt established the Jackson Hole National Monument in 1943 on land fronting the magnificent Teton mountain range in Wyoming. Outrage ensued. Senator Edward Robertson of Wyoming called the president’s action a “foul, sneaking Pearl Harbor blow,” and locals led a cattle drive across the new monument in protest. But by 1950, the monument’s benefits to local life and the economy persuaded Congress to incorporate it into Grand Teton National Park, and President Harry S. Truman agreed. In 1967, Cliff Hansen, a leader of the cattle drive protest who became a United States senator, acknowledged he had been wrong to oppose Roosevelt’s action. He called the expanded Teton Park one of his state’s “great assets.”

Congress can always overturn a president’s monument designation, but has done so only a dozen times. Nearly all involved areas less than 2,000 acres, and the last time it happened was in 1980. But no president has ever attempted to rescind a monument established by a predecessor, and it is unclear whether a president even has the power to do so. Instead, like Congress, presidents have often used the act to expand monuments (and on occasion, to shrink them).

President Jimmy Carter made the most vigorous use of the act up to that time, protecting 56 million acres of federal land in Alaska in 1978 after the state had filed claims to pristine federal lands that Mr. Carter had asked Congress to protect.

In 2006, President George W. Bush established a huge marine national monument in the waters of the Northwestern Hawaiian Islands. He followed that up with several more marine monuments. President Barack Obama enlarged some of those and established several more.

Utah’s congressional delegation is among the act’s loudest critics. Yet at the same time that Representative Bishop calls it “the most evil act ever invented,” the state of Utah’s Office of Tourism is spending millions of dollars promoting Utah’s “Mighty 5” national parks, boasting that they “draw several million visitors from around the world each year.” Four of those “Mighty 5” — Arches, Bryce Canyon, Capitol Reef and Zion — were first protected by presidents of both parties using the Antiquities Act.

The Utah delegation is now trying to persuade President Trump to do away with or shrink the Bears Ears National Monument, established last December by President Obama on 1.35 million acres of federal land in southeastern Utah. Bears Ears contains perhaps the richest cultural, archaeological and paleontological resources of any area of comparable size in the nation.

As our population grows and our rich natural and historical heritage faces increasing threats, we should be looking to protect more places that can inspire and inform present and future generations and offer them recreational opportunities. That is the incomparable legacy of the Antiquities Act, and its necessity is as vital today as it ever was. It would be shortsighted in the extreme for Congress to change a single word of what has been, by practically every measure, one of the most fruitful and farsighted laws it has ever put on the books.

John D. Leshy is an emeritus professor at the University of California Hastings College of the Law in San Francisco, and Mark Squillace is a professor at the University of Colorado Law School in Boulder.


https://www.nytimes.com/2017/03/31/opinion/the-endangered-antiquities-act.html?ref=opinion